Butler, A.G. v Smith, P.A.
[1993] FCA 597
•30 JULY 1993
ANDREW GEOFFREY BUTLER v. PATRICK ANSELM SMITH; TREVOR NOEL BEADLE; GREGORY
JOHN NOONAN; MALCOLM JOHN ROYAL; STEPHEN HENRY WILSON; GRAHAM WILLIAM HALFORD;
DAVID WILSON and DANIEL RALPH SHANAHAN
No. NG24 of 1993
FED No. 597
Number of pages - 6
Administrative Decisions
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW J
CATCHWORDS
Administrative Decisions - whether reviewable error by Patent Attorneys Professional Standards Board in refusing application by student for supplementary examination in preparation of specifications.
Patents Regulations (SR 71 of 1991)
HEARING
SYDNEY, 30 July 1993
#DATE 30:7:1993
Counsel and solicitors for the applicant: Mr P. Biggins
instructed by Toomey Pegg and Drevikovsky.
Counsel and solicitors for the respondent: Mr N.J. Williams
instructed by the Australian Government Solicitor.
ORDER
THE COURT ORDERS THAT:
(1) The application for an Order of Review be dismissed.
(2) The applicant pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
GUMMOW J The respondents are those members of the Patent Attorneys Professional Standards Board ("the Board") who made the decision in respect of which an order of review is sought under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") The application is brought on various grounds detailed in the further amended Application, which was filed in Court on 1 April 1993.
The Board is constituted under Part 5 of Chapter 20 the Patents Regulations ("the Regulations"), being Statutory Rule 71 of 1991. The Chairman of the Board is the Commissioner of Patents for the time being. The other members of the Board, who participated in the decision in question, are all eminent members of the patent attorneys profession, as appears from the details given in the affidavit of Mr J.D. Lonergan, sworn and filed in Court this morning.
Chapter 20, Part 2 of the Regulations deals with the requirements for registration of a person as a patent attorney under s. 198 of the Patents Act 1990. Division 2 of Part 2 deals with prescribed subjects and academic qualifications. It deals with, in particular, the conduct and marking of examinations. The crucial provision is perhaps reg. 20.12. This states:
"(1) An application by a person to sit for a supplementary
examination must be in the approved form.
(2) The Board may let a candidate sit for a supplementary examination if the candidate:
(a) failed an examination and applies to the Board to sit for the supplementary examination within 1 month of being told of the failure; or
(b) did not sit for the examination because of illness or other reason that the Board reasonably considers sufficient and he or she applies to the Board to sit for the supplementary examination within 1 month of the examination."
The applicable provisions in the circumstances of this case are those outlined in para. (a) of sub-reg. 2. The time for the holding of examinations is dealt with in reg. 20.7. This provides that an examination must be held in October, November or December each year and advance notice thereof must be given by publication in the Official Journal.
However, these provisions do not apply to supplementary examinations under the regulation which I have just read. That that is so is specified in reg. 20.7 sub-reg. 3.
The prescribed subjects of the course which applicants must pass to satisfy the requirements of registration are listed in Schedule 5 to the Regulations. There are eight subjects in all. The applicant in this case has satisfied the examiners in respect of all but subject 5, namely, Preparation of Specifications.
The applicant sat for and failed the examinations in that particular subject in 1989, 1990 and 1991. The present litigation arises out of what happened in relation to his sitting for the exam in 1992. The examination was sat by the applicant in Sydney on 8 October 1992. The candidates identify themselves not by name but by number; the applicant was number 133.
The examiners for the Preparation of Specifications subject had been appointed by the Board as early as 10 April 1992. The second respondent, Mr Beadle, had been appointed Primary Examiner and Mr Noonan, the third respondent, had been appointed a Secondary Examiner. The examiners were charged with the task of marking examination papers and passing them over for consideration at the meeting of the Board on 4 December 1992.
By letter dated 26 October 1992, that is to say, several weeks after sitting the examination on 8 October, but before the meeting of the Board, the applicant wrote to the Secretary of the Board enclosing an application to sit for a supplementary examination in subject 5. In support of the application he made a statutory declaration; this dealt in some detail with his personal circumstances in the period September, October 1992 leading up to the confinement of his wife on 8 October 1992.
He said that for the full duration of the examination his thoughts were quite unfocussed on the examination paper and that he was in a state of confusion. He knew that he had been unable to give his best efforts because of his anxiety as to his wife's imminent operation; the child was born by caesarean section on the very afternoon of Thursday, 8 October. The examination had been conducted in the morning and had concluded at about 1.15 pm.
In addition to his declaration with various attachments, the applicant later, on 6 November, sent to the Secretary of the Board a statutory declaration by Mr P.N. Franke. Mr Franke is a patent attorney and the applicant is a technical assistant currently employed in the office of Mr Franke's firm. Mr Frank stated in the declaration that the applicant had failed this particular examination in previous years and that, accordingly, he would have expected that there would be a degree of nervousness as the examination approached. Mr Franke confirmed the agitated state of the applicant in the period commencing in the last few weeks of September.
By a notice issued 4 December 1992 the Secretary to the Board informed the applicant that he had failed in the examination. In response to an application for written reasons, the Secretary stated in letter to the applicant dated 18 December 1992, omitting formal parts:
"As you are aware the Board considered your application at its meeting on 4 December and declined to grant you a supplementary examination.
The Board, while sympathetic to your situation, was of the opinion that the answer you provided did not display a level of understanding for the subject that would lead them to believe your failure was due solely to the stress associated with your wife's condition. In their opinion your answer contained fundamental errors in your approach to the drafting of the specification and the language used in the answer was consistently incorrect."
By the further amended Application, the applicant seeks, inter alia, an order setting aside the decision to refuse the supplementary examination and an order that the Board consider and determine his application for supplementary examination according to law. The evidence indicates that as matters now stand the Board, pursuant to the provisions of reg. 20.7, is ready to hold the next standard examinations, if I can use that expression, in October 1993. It is said to be unlikely that even with the greatest expedition the Secretary could arrange re-consideration of the application, the new content of and the holding of a supplementary examination in subject 5 very much before the standard examinations were held in October. It is said to be even more unlikely that the result would be settled before those examinations.
I should add that there is no material difference between a supplementary examination and the standard examination except that upon failing a standard examination the candidate who failed must first request to sit for a supplementary. It may also be noted that the examination system provided for in the Regulations does not have any guillotine provision which disables candidates from sitting for a particular examination on more than a specified number of occasions. This means that the applicant has not been disqualified in any way from further attempting the ordinary examination for subject 5.
The further amended application is put on various bases under the ADJR Act. In particular, reliance is placed upon alleged failure to afford natural justice. It is said that the decision involved an error of law, that it was an improper exercise of the power conferred by the Regulations and that there was no evidence or other material to justify the making of the decision. However, counsel for the applicant very properly concentrated in address upon the specific matters with which his client takes issue.
The evidence that has been put on by the respondents includes an account by the Secretary, Mr Swift, of what occurred at the meeting in December. Paragraph 19 of the Secretary's affidavit, sworn 29 March, reads:
"The Board noted that no Supplementary Examinations for any person had been recommended by the Examiners. The Board then considered two applications for Supplementary Examinations which were before them for decision. One of those applications was that of the applicant in these proceedings. The Board rejected both applications. In the instance of the other applicant, the Board decided to advise the applicant to provide further particulars in order for the Board to further access the application."
The materials before the Board were in such a form that the names of the applicants for the supplementary examinations had been blocked out and they were identified by their examination numbers. The recollection of the Secretary is that the discussion on the application for the supplementary examination by the applicant occupied some 10 minutes of the Board's meeting time. It is to be borne in mind also that the two examiners were, as I have already indicated, members of the Board dealing with the matter on that day. Thus, this is not a question that could have been decided only by the Board looking to written materials provided by the relevant examiners.
I turn now to the specific matters of which particular complaint was made. I do not do so with regard to any particular order of importance that is attached to them. Reference was made first to the lack in the examination system which the Regulations establish of particular prohibitions upon further sittings for the ordinary examinations. It was suggested that that is a factor which might suggest that the benefit of doubt would be given to an applicant for supplementary examination. However that may be, the facts in the present case indicate that this was not a borderline case where the scales might be tipped one way or the other by such a factor, if it truly were a relevant consideration.
It was then submitted that it was significant that the other applicant for the supplementary examination had been asked or given the opportunity to provide further particulars. The general procedures followed by the Board in such a case appear from a written instrument which is in evidence, para. 22 of which is headed "Supplementary Examinations". This provides, in part, that an application shall be considered by the Secretary and if in the opinion of the Secretary the applicant has lodged sufficient supporting material to enable the Board to consider the application the application shall be referred, with the answer papers of the candidate, to the Primary Examiner; then there is to be a report to the Board in conjunction with the Secondary Examiner. If the Secretary is not so satisfied then the Secretary shall request the applicant to provide such further information as is deemed necessary.
The differential treatment of the two applicants is not one which, in my view, founds any safe footing for administrative review. Rather, it indicates that the Board was alive to the sort of situations which have arisen in various decisions in this Court where there would be a denial of natural justice without giving an opportunity for the provision of further material to the decision maker. That does not mean that such opportunity is to be extended in all cases.
The situation here is very different from that in decisions such as Somaghi v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119 and Heshmati v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 123 at 133. In those cases, the decision maker was proposing to act on a belief as to absence of good faith, in a crucial respect, on the part of the applicant. That is nowhere near the present situation. Nor is it a case comparable to Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, particularly at 482.
Then it was suggested that the significance of the material put forward by the applicant in his statutory declaration and the declaration of his employer had not been fully appreciated. However, in my view, on the evidence there is nothing to suggest that proper weight was not given to that material. It was considerably detailed.
Next it was said to be a factor favouring the applicant that he had moved late in October with his application and that he had not waited for the promulgation of the results. That might have some weight as a discretionary factor if one came to issues of discretion in this case but I do not see it as founding any particular ground or supporting any particular ground for the case for judicial review.
It was further submitted that the Board should have pointed out to the applicant the significance which it was attaching to his previous record. This, after all, was his fourth attempt at the examination. However, the evidence raises the clearest inference (and I refer, for example, to the statutory declaration of the applicant's employer) that all concerned realised that that was a significant matter and were well alive to it.
Finally, it is complained that the Board should not have decided as it did, without having before it material to compare with what would or might have been the performance of the applicant on 8 October had he not been in the stressful state which he had detailed in his application in support of material. The answer to this is twofold. First, that inquiry would really involve consideration of something imponderable. Secondly, in any event, an applicant complaining of denial of the opportunity to put forward such material would ordinarily be expected, at this stage, to indicate to the Court the nature of that material and enable the Court to form a view as to its cogency, at least on a provisional footing. No such material has been put before the Court on this application.
In all these circumstances I have reached the clear view that the application for review should be dismissed. The applicant must pay the respondents' costs.
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